libertango | Entries tagged with constitution

Linda Greenhouse of the New York Times has a blog post reporting a commencement speech to Harvard by former Justice David Souter.

Great stuff all around. I particularly like the echo of my professor Leo Flynn in this passage:

The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” (Souter) suggested:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

The full text of Souter's speech is available here.

There's the usual grinding of wheels in the comments about "activism" vs "originalism." Here's what I submitted as a comment:

*^*^*

The existential problem of the originalist position may be put this way:

What if the original intent of the Founders was that the Constitution not be enforced in light of original intent?

Exhibit A in that surmise would be the Ninth Amendment, which reads in full, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, to the complaint of the literalists that, "Show me where in the Constitution a right to such-and-such exists," the Founders, through the Ninth Amendment, say, "It doesn't matter." So concerned were the Founders about the possibility the literalists might prevail that many states refused to initially consider the Bill of Rights until the Ninth Amendment was added, precisely because they didn't want liberty constrained by black letter text..

That sets up the basic conflict: If you're a literalist, you have to take the Ninth Amendment into account; but the Ninth Amendment repudiates literalism.

This is probably why Robert Bork famously tried to sweep the Ninth Amendment under the rug as a, "Rorschach test." The literalists and originalists find the only way to reconcile their views on the original text of the Constitution is to ignore the original text of the Constitution.

Accordingly, Antonin Scalia is probably the most "activist" voice in the judiciary today. And how ironic is that?

UPDATED TO ADD: It appears the Times axed the comments they already had in hand, and now simply say, "Comments are not being accepted for this post." I've been noticing how whether they accept comments on any given piece has appeared to be random. This is the first time I've noticed them both turning them off and removing the existing ones, though.

...at least somewhat.

My letter to the editor regarding Rob McKenna's illegal law suit has been posted on their "Northwest Voices" blog. That's basically their letters overflow page. It's possible it'll be printed in the paper version of the newspaper, but it's unclear.

In the comments section:

*^*^*^*

"If you are truly a conservative, then you must be appalled that for the 1st time in 200+ years, the Federal Government is forcing everyone to purchase a product from a private business."

But those previous times Congress did force everyone to purchase a product from a private business are instructive, especially since they're from early Congresses composed of many of the Framers of the Constitution.

There's the Militia Act of 1792, which mandates every male citizen, "provide himself with a good musket or firelock..." and various other supplies. This was not provided by the government; the citizen had to buy it on his own from private vendors.

Then there's the Act for the Relief of Sick and Disabled Seamen from May 1802, which establishes both a government mandated insurance program and the first payroll tax in America.

Many say they respect the Founders; few act like they do when the Founders disagree with them.

From Clay Shirky (tweeting as @cshriky), I learn Newt Gingrich tweeted the following:

"Rendering Miranda rights to terrorists on foreign soil is amazing We are in a war The terrorists are enemies not criminals"

At which point, I have to employ Cameron's Skepticism:

"You can tell me all day that you believe that there's a giant, pink, flying dragon chained up in your back yard, but if you never go in your back yard and put food and water out, I'm going to assume that you don't actually believe that."

That is, Newt can tell me all day he thinks terrorists are enemies not criminals, but if he never calls for Roeder and Von Brunn to be shipped to Guantánamo as terrorists, I'm going to assume that he doesn't actually believe that.

A piece in the New York Times about how Republicans are preparing to oppose any nominee Mr. Obama brings forward to replace Mr. Souter.

Simultaneously the saddest and most unintentionally funny passage:

"If (Obama) nominates Judge Sonia Sotomayor, they plan to accuse her of being “willing to expand constitutional rights beyond the text of the Constitution.”"

Which is to say, Ms. Sotomayor is a strict constructionist who's read the Ninth Amendment, and they haven't.

Just to remind everyone, here's the Ninth Amendment to the US Constitution in full:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Or, in more colorful terms: "Dear Literalists: We're not going to put every right the people have into the black letter text of the constitution. That doesn't mean they don't have those rights, though. Drop dead. Love, The Founders."

In other words, the fundamental bankruptcy of original intent -- that is, interpreting the Constitution solely as the Founders would have understood it -- is this:

What if the original intent of the Founders was that the Constitution shouldn't be interpreted in light of "original intent"?

And as Exhibit A, I would point you squarely at the Ninth Amendment.

I know I'm not the target audience, but if the rap against Ms. Sotomayor is that she's read and understood the Constitution in full, while her critics have not... Well, more power to her.

More importantly, though, the fact that opponents are gathering ammunition now instead of waiting and judging any given nominee on the merits is about as close to the definition of "prejudicial" as I can think of.

Here's Steven Pinker in the New York Times writing a good piece on Chief Justice John Roberts' lapse when giving the oath of office to Mr. Obama the other day. It's not a bad theory -- that Roberts is a grammar weenie of the variety who thinks he can re-write quotes to suit his own beliefs (as it's claimed he's done with Dylan, for example).

But I can't help thinking Nino Scalia probably ribbed Roberts about, "Expounding a 'living constitution' and revising on the fly, eh?" And for once, Scalia would have a point.

UPDATED TO ADD: Ye Olde Comical sez: "Two previous presidents, Chester Arthur and Calvin Coolidge, retook their oaths under similar circumstances."

From

jaylake comes this article in the New York Times re the issue of whether McCain is a "natural born citizen" as the Constitution requires, given that he was born in the Canal Zone in Panama. Key graf for me:

"The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain’s eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen."

See, if he'd been born at an embassy or a consulate -- a place with extraterritoriality, to use the term of art -- I'd have no problem. But despite some diplomats' assertion that we stole the Canal Zone fair and square, this has bugged me. And now that a specific law has been found that conferred citizenship on people born in McCain's circumstances after the fact... I don't see how you can avoid the conclusion that until that law passed, he wasn't a citizen. (Nor were a number of other people.) Bulk naturalization is naturalization just the same.

The article goes on:

"“It’s preposterous that a technicality like this can make a difference in an advanced democracy,” Professor Chin said. “But this is the constitutional text that we have.”"

Indeed. Jay thinks this is a bogus point, but I think of it as fairness. Alexander Hamilton, notably, was disqualified from being president because of it, as he was born in Barbados. We've had too many exemptions from the Constitution for the sake of expediency in recent years.

I'll agree with Jay, though, "As with so many other issues-of-character and personal past by which Democrats are hung out to dry, it’s OK if you’re a Republican."

I don't see why we don't just start calling them "anti-Constitutionalists", like the old anti-Federalists.

UPDATED TO ADD: I made multiple Gross Factual Errors regarding Mr. Hamilton. I'll let them stand, as a reminder to keep myself humble.

... the term coming from

pecunium.

Anyway, here's the roll call in the Senate for the FISA bill. This is the one that contains telco immunity, and a number of wholly superfluous security theater style measures that contribute not one whit to stopping actual terrorists in the field.

(Subtle hint: It's been known since Mohamed Farrah Aidid in Somalia that the easiest way to send messages with no wiretap at all is to send individual messengers. The odds are extremely high that no terrorist message will ever be intercepted, because they're not stupid enough to use a medium that can be readily tapped. That means this bill gives powers to the executive branch with no practical purpose other than to spy on everyday citizens.)

Others have commented on Obama's switch on this issue, mostly because the use of the issue of terror has become the Red-baiting of our time, and he doesn't want to be seen as "soft on terrorism" in an election. More disappointing to me was the vote of Webb of Virginia, who has been mentioned as a Veep candidate (including by me). No longer, as far as I'm concerned.

Mad props to Senators Feingold (who led the fight against the measure), Dodd, Cantwell, and Murray (which is to say, both of Washington's Senators remain committed to the Constitution).

pecunium posted about an interview he did for radio. The show is Justice Talking, and the topic for him is the usefulness (or lack thereof) of torture in interrogations. It's admirable because he manages to make his point without using the phrase "movie plot."

This is an .MP3 of the whole show. This is an .MP3 of only Terry's segment.

The show as a whole starts off with John Yoo. What's striking, especially listening to it after hearing Terry, is that Yoo doesn't even appear to be justifying the sweeping anti-constitutional doctrines he espouses on the basis of usefulness. No, he appears to be taking the tack of starting with the conclusion that The President Has Broad Powers In Wartime, and then backfilling his argument from there. A classic of, If the facts don't fit the theory, they must be disposed of. Very French, if we are to believe Adam Gopnik, and his idea that a French newspaper would hire "Theory Checkers" rather than fact checkers.

Listening to Terry, though, leaves one with the idea that torture just doesn't work empirically, on its own terms. So much so, that I can't think of a single historical instance where it has. I suspect if I was in a public debate with someone advocating torture, I'd probably ask them to cite three examples where it has worked. I'd even leave aside current operations, to not let people's opinions on Iraq to get in the way -- just name three incidents historically. (There's also the minor problem that many of the advocates of torture who have putative expertise are also the practitioners of torture, and so have a vested self-interest in puffing their own records, regardless of real-world outcomes.)

I don't think they could do one. (But, in that internet way, I invite you to do the same now.)

In a comment thread at David Sucher's City Comforts, we've been talking about the administration's domestic spying program. One person said this:

"I was always dissatisfied with prior liberal complaints that we civilians had no sacrifice that we had to bear. I always thought that it was a crock, that the inevitable erosion of liberty in wartime was real sacrifice and that victory demanded such sacrifices as we temporarily acquiesce to the state powers that should be stripped of it in peacetime."

Leave aside the premise as to whether we are "in wartime" (Here's H.J.Res.114, which is the act authorizing force in Iraq. Look at Section 3, and tell me if we've achieved those things. If we have, any other use of force is unauthorized, folks. Which was Rep. Murtha's point. But I digress.)... As I say, leave that aside. The other premise bothers me even more. That is, that in wartime, an erosion of liberty is "inevitable."

I don't believe it is, at all. I'm squarely with William Pitt on this one: "Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."

Now, if you want to say it's more difficult to fight a war while upholding liberty, I'd agree with that. But you know what? We're Americans. I think we're tough enough, and we can rise to the challenge. If you want to say this president is too weak to do the job correctly, I'd agree with you that far.

John Kerry had a great line in the first presidential debate, back on Sept. 30, 2004. It was this:

"Just because the president says it can't be done... doesn't mean it can't be done."

I thought Kerry should have hammered home on that in the close of the campaign. Just because Bush has said he has to break the law to fight terrorism, doesn't mean that someone better couldn't do the job legally. It only means this president couldn't manage to find the gumption to do it.

Here's what I really think: I think it's easy to stick to your principles when times are easy. I think it's hard to stick to your principles when times are hard.

I think that's why they call some times "easy," and some times "hard."

I think that as soon as times became hard, Bush lacked the character to stick to American constitutional principles.

But that doesn't mean it was, "inevitable." It just means this particular president failed.

It doesn't mean it can't be done.

I was thinking (yeah, yeah, I know, the Administration discourages that)...

You know all those "Defense of Marriage" laws that have been passed in the last few years?

Again, the only reason one would need a Federal Marriage Amendment (FMA) (or something similiar) would be if you already acknowledge that they're all unconstitutional. That same-sex marriage really is not just allowed, but mandated under the Constitution as it currently stands, and that without modification all those damned bills are going to be thrown out by the courts.

So, this is what today's headline of yesterday's speech by Bush should be:

BUSH CONCEDES GAY MARRIAGES LEGAL
Calls For 1st-Ever Amendment To Strip Current Rights

...not that you'll see it that way, of course.

Slactivist hits at least one nail on the head regarding the push for a Constitutional amendment to privilege certain religious beliefs:

"(San Francisco Mayor) Newsom highlights the contradiction embraced by those who want to argue both that same-sex marriages are not constitutional and that the Constitution must be amended in order to make such marriages illegal.

If these marriages are not constitutional, then there is no need for the FMA (Federal Marriage Amendment).

If these marriages are constitutional, then one cannot argue that they are illegal or illegitimate.

The very effort to introduce and eventually ratify something like the Federal Marriage Amendment concedes the essence of Newsom's argument. Supporters of the amendment, therefore, are at least tacitly conceding that theirs is an effort designed to alter the Constitution in order to make it less inclusive than it is today."

24 February 2004

To the White House staff:

I am dismayed by President Bush's call for a Constitutional amendment banning same-sex marriages, if not surprised.

But something that doesn't get talked much about the issue is this: Most people's objection to same-sex marriages boils down to a religious one. The objectors believe it is "sinful". Supporters of same-sex marriage believe there is no "sin" involved.

Using the power of government to enforce one group's vision of sin upon another is exactly what the First Amendment's clauses regarding Congress making, "no law respecting an establishment of religion, or prohibiting the free exercise thereof," are about.

This is why the President has to insist on a Constitutional amendment.

But if the amendment passes, it is the death-knell of religious freedom in this country. What will be next? An amendment banning all religions save the President's own?

That is the real issue here.

I used to consider myself a Republican. The party’s belief that Americans have the right to run their own lives without government interference was paramount to me.

After today, Mr. Bush has made me a Democrat. To protect religious freedom in this country, and to protect the Constitution itself from him.

Thank you for your time and consideration.

Sincerely yours,

Hal O’Brien

Paul Krugman has a great piece on his web site debunking the conspiracy theory that the Iraq action is all about the competition between the euro and the dollar. It ends with this conclusion:

"So this particular conspiracy theory is wrong. Sorry.

Of course, you may well ask, why then are these people so determined to have their war? The answer is because. Just because."

Yup. This war -- and the deliberate work to alienate our allies leading up to it -- is mostly happening because Jorge is an overgrown teenager. He wants the war because he wants it. That's it. Nothing deeper, nothing noble. He just wants to say, "Fuck you."

In fact, if this administration has a motto at all, that's it. "Fuck you." And endless variations thereof.

"We didn't get enough votes to win." Fuck the votes.

"The Constitution says you have to run the election a certain way." Fuck the Constitution.

"Cutting taxes will deepen the deficit, and hurt the economy." Fuck the deficit. Fuck the economy.

"Saying we don't really need the Brits militarily will put the one genuine ally we have at tremendous political risk." Fuck Tony Blair.

"The inspectors say there are no WMD in Iraq." Fuck the inspectors.

"The UN is unified 12-3 against us in the Security Council." Fuck the UN.

And, proving Los Amigos Arbusto will bite the hands that feed them...

"The tax cut will hurt the rich by deepening resentment against them." Fuck the rich.

"The Bible says one's faith should be a private thing, and that Caesar and God should be given a separation." Fuck the Bible.

"If Iraq does turn out to have WMD after all, we're sending our troops on a suicide mission." Fuck the troops.

It's their answer to everything.

News item:

"A divided U.S. Supreme Court upheld on Wednesday California's "three-strikes" law which gives up to life in prison for repeat offenders even if their last crime was minor theft like stealing golf clubs.

By a 5-4 vote, the high court ruled the law does not violate the constitutional ban on "cruel and unusual" punishment.

In one case, the high court said it was constitutional for Gary Ewing to be sentenced to 25 years to life even though his last crime was stealing three golf clubs worth about $1,200.

In the other case, the justices by a 5-4 vote said a U.S. appeals court was wrong in overturning the sentence of two consecutive terms of 25 years to life for Leandro Andrade, who stole nine videotapes worth $153.

Ewing and Andrade had been convicted of a number of prior felonies. They argued the law unconstitutionally resulted in an unduly harsh sentence "grossly disproportionate" to the crime.

Justice Sandra Day O'Connor wrote in the majority opinion that in the Ewing case the three-strikes laws caused a dramatic change in criminal sentencing in the mid-1990s throughout the nation.

State legislatures "made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior and whose conduct has not been deterred by more conventional approaches to punishment must be isolated from society ... to protect public safety," she said.

O'Connor said the Supreme Court has a long-standing tradition of deferring to state legislatures on such policy choices."

Except, of course, when it comes to election laws.

{hal slaps his hand to his mouth}

Did I say that out loud? Oh, so sorry...

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Hal O'Brien

Slipping on the fatal floor.

Entries tagged with constitution

NYT on Souter

Letter In the Times

Hypocrisy strikes again

Under Construction

Flub-a-dub-dub

McCain and "natural born"

"Reichstag smoulder"

On the Radio

Inevitability

Further thoughts on last post:

Good argument

Just faxed to the White House

Hey! Krugman is as cynical as I!

Three strikes